Foundational proof in red-light-camera cases must be based on personal knowledge

March 2, 2012
By Justice Steven Vartabedian (Ret.) on March 2, 2012 6:00 AM |

traffic Lights.jpgMunicipal governments in California face many challenges. Two of these are to improve traffic safety and to raise revenues. The advent of red-light-camera enforcement proposed to assist these divergent objectives. But a simple problem of meeting evidentiary requirements may be derailing this campaign.

In People v. Borzakian (filed January 23, 2012, certified for publication February 10, 2012) 2012 DJDAR 1923, defendant contested the mailed citation she received for failing to stop at a red light based on automated photographic evidence. At trial, she objected to the People's evidence that consisted of a police officer testifying en masse in traffic court that the photographic equipment provided by a private company was properly calibrated and maintained, causing the photographic depiction to be accurate. She objected for lack of foundation, hearsay, and violation of the right of confrontation stated in Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527. The trial court overruled the objection and convicted her. Defendant appealed via transfer to the Court of Appeal, Second Appellate District, Division Seven. That court reversed the judgment.

The appellate court noted a split of previous opinions on the subject. In People v. Khaled (2010) 186 Cal.App. 4th Supp. 1, the Orange County Superior Court Appellate Division found that unless a testifying officer had personal knowledge of the foundation for introducing into evidence photographs, the underlying workings of the automated camera and the business records in connection therewith, the photograph was inadmissible. The Los Angeles Superior Court Appellate Division disagreed in People v. Goldsmith (2011) 193 Cal.App.4th Supp.1. Goldsmith found the photographs were not statements from a human declarant, and they were entitled to a presumption of accuracy that had to be rebutted by a challenging defendant.

Agreeing with Khaled, the Borzakian court found these photographs to be writings under Evidence Code section 250 thus requiring authentication. Vehicle Code section 21455.5 [c] only allows governmental agencies to operate an automated enforcement system including certifying that such is properly maintained and installed. While Evidence Code section 1552 presumes that a computer's print function works properly, that presumption does not operate to establish the accuracy or reliability of the printed information. Because the officer here failed to describe the mode of preparation of the maintenance logs (nor had he the knowledge to do so), those logs were inadmissible; without this foundation, the photographs too were inadmissible.

I suspect that to become capable of producing admissible evidence in these camera cases, municipalities would end up having to spend a lot more money, possibly to the point of defeating financial feasibility. I know many cities have simply stopped using the systems they have had installed. Those that continue to use them are probably banking on most people not knowing how to contest these tickets. But please, never let it be said that this blog encourages people to take risks and run red lights with impunity. Your health and the health of others are too important.